The regulation he cited applies to a different type of investigation.
I have argued that Attorney General Jeff Sessions’s recusal from the so-called Russia investigation was a mistake. The attorney general’s testimony before the Senate Intelligence Committee on Tuesday afternoon bolstered this conclusion.
Sessions says that he recused himself, on the advice of career ethics experts at the Justice Department, because he thought this was required by the federal regulation controlling “Disqualification arising from personal or political relationship” (28 CFR Sec. 45.2). But judging from the public testimony that former FBI director James Comey has given about the investigation into Russia’s election-meddling, the regulation did not mandate recusal.
Section 45.2 states that an official is disqualified from “a criminal investigation or prosecution” if he has a personal or political relationship with a “subject of the investigation or prosecution,” or with a person or organization whose interests would be affected by the outcome “of the investigation or prosecution.” (Emphasis added.)
The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution. Moreover, when the reg speaks of the “subject of the investigation or prosecution,” it is using “subject” as a criminal-law term of art. A “subject” is a person or entity whose actions are being examined by a grand jury with an eye toward a possible indictment. There are no “subjects” in that sense in a counterintelligence investigation because the objective is not to build a criminal case and there is no grand jury.
Just last week, in his written and oral testimony, former FBI director James Comey reiterated that the Russia probe is a counterintelligence investigation. As Comey elaborated, a counterintelligence investigation is an effort “to understand the technical and human methods that hostile foreign powers are using to influence the United States or to steal our secrets,” in order to “disrupt” those activities. Again, the point is to gather intelligence about a foreign power, not investigate with an eye toward a prosecution of criminal suspects.
This is consistent with the testimony then-director Comey provided to the House Intelligence Committee on March 20:
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.
Comey added, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” This is true, but it is more incidental than Comey suggests. All it means is that if, in the course of conducting a counterintelligence investigation, FBI agents discover that a crime has been committed, they are not required to ignore the crime just because it is not what they were looking for in the first place.
The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution.
This commonsense principle is similar to the one holding that if agents are executing a search warrant that authorizes them to look for crime A (say, guns with obliterated serial numbers), and in the course of carrying out the lawful search they find evidence of crime B (say, bags of heroin), they are not required to ignore crime B just because it’s not the one they were investigating.
It is thus easy to see how recusal is supposed to work. Presumptively, an attorney general should not have to recuse himself from a counterintelligence investigation. After all, counterintelligence is not lawyer work; it is about gathering and evaluating intelligence — that’s the FBI’s expertise, not the prosecutors’. Thus, counterintelligence investigations ordinarily do not have a prosecutor assigned.
A comparison may be helpful: Prosecutors are central to criminal investigations. They run the show once the investigative phase passes into the charging and prosecution phase. In stark contrast, government lawyers are, at most, ancillary to counterintelligence efforts. They are usually non-participants. Their help is necessary if the agents need to seek a surveillance warrant from the Foreign Intelligence Surveillance Court (the FISA court); but even when that happens, the agents do all the surveillance and analysis.
There could be exceptions in which a presumption against recusal is overcome. Let’s say X, who is a close friend of the attorney general’s, is suspected by the FBI of acting as an agent for China. The FBI goes to the Justice Department’s National Security Division (NSD) because the bureau wants to get a warrant from the FISA Court to intercept X’s e-mails. The NSD, of course, answers to the attorney general. In such a case, to avoid the appearance of impropriety, it would be prudent for the attorney general to recuse himself from any involvement in the FISA surveillance — even though FISA surveillance is done in a counterintelligence investigation, so there is no criminal investigation or prosecution.
But barring that highly unusual situation, counterintelligence investigations should not trigger disqualification or recusal of an attorney general unless and until the investigation turns up incriminating evidence that could form the basis for a criminal investigation — and a possible prosecution. If that happens, the attorney general (or any other Justice Department official in a recusal situation) not only should but must apply the disqualification rule, and should recuse himself if the criminal investigation involves the kind of conflict of interest — based on a personal or political relationship — set forth in the regulation.
Based on what has been reported, the Russia investigation has turned up potentially incriminating evidence involving Michael Flynn, President Trump’s original national-security adviser. There is apparently a federal grand jury considering relevant evidence in Virginia. Applying what I have outlined above, Attorney General Sessions would certainly have had to recuse himself from the criminal investigation of Flynn, with whom he had a political relationship in the Trump campaign and the formation of Trump’s administration.
Nonetheless, it was unnecessary for Sessions to recuse himself from the broader counterintelligence investigation. It is not a criminal inquiry, and Regulation 45.2 explicitly applies only to criminal investigation or prosecution.
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